Gilbert vs. Thomas et al. The question is, is an equity case, a civil case according to the true intent and meaning of this clause? No doubt but that the language is broad enough to include equity as well as common law cases, inasmuch as both branches of jurisdiction fall under the denomination of civil, in contradistinction from criminal cases. But was this the design of the framers of the constitution? We are clearly of the opinion that it was not. The constitution does not provide for the exercise of any equity jurisdiction whatever. It declares, as will be perceived, that “the Superior courts shall have exclusive and final jurisdiction in all criminal cases, which shall be tried in the county wherein the crime was committed;" "and in all cases respecting titles to land, which shall be tried in the county where the land lies." These provisions clearly relate to the common law jurisdiction of those courts, and it is thus seen, that with the exception of the power to correct errors, to order new trials, and their appellate jurisdiction, the only jurisdiction granted by the constitution to the Superior courts' was in criminal cases and in cases respecting titles to land. It granted no general jurisdiction in equity cases, and of course made no provision for such cases. The article proceeds to declare, that the Inferior courts shall have cognizance of all other civil cases. Thus, then, under the constitution of 1798, the Inferior court had exclusive jurisdiction in all civil cases excepting those respecting titles to land; and if the term "civil cases," as used in that instrument, embraced equity cases, it follows that equity jurisdiction was vested in the Inferior, to the exclusion of the Superior courts, an absurdity that no one will impute to the authors of the constitution. If the constitution had embraced equity cases, no conceivable reason can be assigned why a provision was not made for joint defendants in equity, similar to that respecting joint obligors, and which by subsequent amendments has been extended to indorsers as well as co-obligors and joint promissors. The constitution declares, that the judicial powers of this State shall be vested in a Superior Court and in such inferior jurisdictions as the legislature shall from time to time ordain and establish. It gives to the general assembly power "to make all laws and ordinances which they shall deem necessary and proper for the good of the State, which shall not be repugnant to the constitution." The term "judicial powers," embraces all cases, criminal and civil, at common law and in equity, and the legislature in regu Gilbert vs. Thomas et al. lating them, were authorized to make any arrangement of them not repugnant to the constitution. In the exercise of this power they vested jurisdiction in equity cases in the Superior courts, having previously given those courts concurrent jurisdiction with the Inferior courts in all civil cases. The equity jurisdiction was created by the Act of 1799. It was a special grant, and gave an exclusive jurisdiction. It authorized the Superior courts to "exercise the powers of a court of equity," by such proceedings as were "usual in such cases." One of the distinguishing characteristics of such a court is, that it calls before it all persons within its jurisdiction who have any interest in the matter pending before it; without this its jurisdiction cannot be exercised. And the argument, that a party residing out of the county in which a bill is filed cannot be made a defendant in that suit, seeks to destroy the equity jurisdiction of the Superior courts, by subjecting it to a provision of the constitution which is solely applicable to those cases for the trial of which that instrument had provided, and in which it had, by an additional provision, obviated the difficulty which that provision would have created in cases where defendants resided in different counties. When it is considered that the grant of equity power or jurisdiction, was made by the Act of 1799, and that for half a century it has been exercised in the manner now objected to; that such exercise has been regulated by rules of court made by individual judges, and by the collective body of judges assembled in convention, the question under consideration would seem to be no longer open. The case of Grimball & Ross, T. U. P. Charlton R. 175, has been cited in opposition to the foregoing construction. It was there decided, and we believe rightly, that an equity case was a ciril case within the provisions of the alleviating law of 1807; and it shows that words and phrases are to be interpreted according to their collocation, and not their abstract signification. The Act of 1807 forbade the courts "to issue any civil process or to try any civil cases which had before been sued out, except for the trial of the rights of property, and in cases of attachment," &c. Here the intention of the legislature was sweeping, embracing all civil cases except those specified. The Superior courts were then exercising an equity jurisdiction under the Act of 1799. The process issued in them was no doubt civil, as contradistinguished from criminal process, and equity cases were consequently Gilbert vs. Thomas et al. The question is, is an equity case, a civil case according to the true intent and meaning of this clause? No doubt but that the language is broad enough to include equity as well as common law cases, inasmuch as both branches of jurisdiction fall under the denomination of civil, in contradistinction from criminal cases. But was this the design of the framers of the constitution? We are clearly of the opinion that it was not. The constitution does not provide for the exercise of any equity jurisdiction whatever. It declares, as will be perceived, that "the Superior courts shall have exclusive and final jurisdiction in all criminal cases, which shall be tried in the county wherein the crime was committed;" "and in all cases respecting titles to land, which shall be tried in the county where the land lies." These provisions clearly relate to the common law jurisdiction of those courts, and it is thus seen, that with the exception of the power to correct errors, to order new trials, and their appellate jurisdiction, the only jurisdiction granted by the constitution to the Superior courts was in criminal cases and in cases respecting titles to land. It granted no general jurisdiction in equity cases, and of course made no provision for such cases. The article proceeds to declare, that the Inferior courts shall have cognizance of all other civil cases. Thus, then, under the constitution of 1798, the Inferior court had exclusive jurisdiction in all civil cases excepting those respecting titles to land; and if the term "civil cases," as used in that instrument, embraced equity cases, it follows that equity jurisdiction was vested in the Inferior, to the exclusion of the Superior courts, an absurdity that no one will impute to the authors of the constitution. If the constitution had embraced equity cases, no conceivable reason can be assigned why a provision was not made for joint defendants in equity, similar to that respecting joint obligors, and which by subsequent amendments has been extended to indorsers as well as co-obligors and joint promissors. The constitution declares, that the judicial powers of this State shall be vested in a Superior Court and in such inferior jurisdictions as the legislature shall from time to time ordain and establish. It gives to the general assembly power "to make all laws and ordinances which they shall deem necessary and proper for the good of the State, which shall not be repugnant to the constitution." The term "judicial powers," embraces all cases, criminal and civil, at common law and in equity, and the legislature in regu Gilbert vs. Thomas et al. lating them, were authorized to make any arrangement of them not repugnant to the constitution. In the exercise of this power they vested jurisdiction in equity cases in the Superior courts, having previously given those courts concurrent jurisdiction with the Inferior courts in all civil cases. The equity jurisdiction was created by the Act of 1799. It was a special grant, and gave an exclusive jurisdiction. It authorized the Superior courts to "exercise the powers of a court of equity,” by such proceedings as were "usual in such cases." One of the distinguishing characteristics of such a court is, that it calls before it all persons within its jurisdiction who have any interest in the matter pending before it; without this its jurisdiction cannot be exercised. And the argument, that a party residing out of the county in which a bill is filed cannot be made a defendant in that suit, seeks to destroy the equity jurisdiction of the Superior courts, by subjecting it to a provision of the constitution which is solely applicable to those cases for the trial of which that instrument had provided, and in which it had, by an additional provision, obviated the difficulty which that provision would have created in cases where defendants resided in different counties. When it is considered that the grant of equity power or jurisdiction, was made by the Act of 1799, and that for half a century it has been exercised in the manner now objected to; that such exercise has been regulated by rules of court made by individual judges, and by the collective body of judges assembled in convention, the question under consideration would seem to be no longer open. The case of Grimball & Ross, T. U. P. Charlton R. 175, has been cited in opposition to the foregoing construction. It was there decided, and we believe rightly, that an equity case was a civil case within the provisions of the alleviating law of 1807; and it shows that words and phrases are to be interpreted according to their collocation, and not their abstract signification. The Act of 1807 forbade the courts "to issue any civil process or to try any civil cases which had before been sued out, except for the trial of the rights of property, and in cases of attachment," &c. Here the intention of the legislature was sweeping, embracing all civil cases except those specified. The Superior courts were then exercising an equity jurisdiction under the Act of 1799. The process issued in them was no doubt civil, as contradistin hed from criminal process, and equity cases were consequently Gilbert vs. Thomas et al. then disappear behind the scenery." Could he not demur to the bill for want of equity as against him? and if so, is it not apparent that he is improperly joined with the other defendants? While we are satisfied that the constitution does not apply to equity causes, yet we cannot shut our eyes to the fact which stands out so prominently on the face of it, to wit, that the citizen shall not be drawn to a distance from the county of his residence to litigate among strangers, where it may be very inconvenient, if not impossible, to give security on the appeal, and to comply with other burdens imposed by the law to enable him to contest his rights, unless it is indispensably necessary to enable the court to do complete justice. Here, so far from any such necessity existing, the very contrary appears to us to be true. We believe that we shall do violence to the rights of Rogers, who is not in default, and between whom and his co-defendants there is no privity, should we retain jurisdiction over Thomas Gilbert in Hancock county, in the proceeding which has been instituted; and for this reason, the judgment below must be reversed. My brother Benning seems to think, that there is some antagonism between the cases of Thomas vs. Hardwick, 1 Kelly R. 78; Crafton vs. Beal, ib. 322, and Broach vs. Walker, 2 id. 428. After the most careful scrutiny and close comparison, we confess that our intellectual optics are too dim to discover the conflict. 66 In the first, the Court decided that by the common law, an administrator de bonis non could not call the representative of the deceased executor or administrator to account for any property which their testator or intestate may have converted or wasted;" and that "the act of 1845 to define the rights and powers of administrators de bonis non, does not extend to suits brought and prosecuted to judgment before its passage." In the second, "the testator left a will, naming several executors, to whom he bequeathed in trust for certain grand-children, a portion of his estate; one of the executors only qualified, and receiving the trust property, afterwards died intestate before the trust thus devolved on him was entirely executed. After his death, another of the executors named in the will, came forward and qualified within the twelve months provided by the statute." The Court held, that "the last qualified executor was entitled to the possession of the unadministered portion of the trust estate, and not the administrator of the deceased executor." |